Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. DR020112
Parrilli, J.
INTRODUCTION
Plaintiff and appellant Wendell Row appeals the judgment entered in favor of defendant and respondent Rapid Package Delivery (“RPD”) following a jury trial. Appellant sued RPD for damages under a theory of respondeat superior for injuries he sustained when his motorcycle collided with a vehicle driven by an RPD employee, Ann Marie Harper (“Harper”). The jury concluded Harper was not acting within the scope of her employment at the time of the collision, and did not reach the issues of fault or damages. Appellant contends the trial court’s instruction on the scope of employment was erroneous; there is insufficient evidence to support the jury’s verdict; the trial court erred in denying his motion for a new trial; and, the trial court erred in denying his motion for judgment notwithstanding the verdict (“JNOV”). We affirm.
Appellant settled against Harper before trial for her policy limits of $15,000 (personal injury) and $5,000 (property damage).
BACKGROUND
A. Factual & Procedural Outline
It is undisputed Harper was employed by RPD at the time of the accident. RPD is based at Murray Field Airport, a county-owned airport near Eureka, California. A two-lane county road terminates at the airport and provides the only means of motor vehicle access to and from the airport (“approach road”).
Harper’s job duties included picking up and delivering packages. Harper used her own vehicle, a 2000 Kia SUV for deliveries and was reimbursed 25 cents a mile by RPD for that purpose. On May 7, 2001, the day of the accident, Harper’s last pickup was a package from Wells Fargo Bank, which she delivered to the RPD hangar at Murray Field Airport. Harper left the RPD hangar, and at approximately 5:05 p.m., her Kia SUV collided with appellant’s motorcycle on a bend in the approach road to the airport. Appellant was thrown from his motorcycle in the collision and injured.
We need not elaborate on facts or evidence relevant to issues of fault and damages, because they are essentially irrelevant to the question before us.
Appellant filed his personal injury complaint on March 13, 2002. Opening statements at trial were delivered on March 21, 2006. The case went to the jury after closing argument on March 27, 2006. The special verdict given to the jury contained four questions: “(1) At the time of the accident, was Ann Harper acting within the scope of her employment with [RPD]?; (2) Was Ann Harper negligent?; (3) Was Ann Harper’s negligence a substantial factor in causing harm to plaintiff Wendell Row?; (4) What are plaintiff Wendell Row’s total damages?” After less than three hours of deliberation, the jury returned its special verdict on a vote of ten to two. The jury answered the first question “No,” and as instructed, signed and returned the verdict without answering the other questions.
RPD filed Notice of Entry of Judgment on April 18, 2006. Appellant filed a motion for new trial and a motion for JNOV on May 8, 2006. The trial court held a hearing on appellant’s post-trial motions on June 12, 2006. After hearing argument on the motions, the trial court ruled: “I am still of the opinion that the jury instruction I gave is correct. . . . And based on that, the motion for new trial is denied. And I think with that jury instruction, there is sufficient evidence upon which the jury could have reached the verdict. So the motion for judgment notwithstanding the verdict is also denied[.]” Appellant filed a timely notice of appeal on June 13, 2006.
B. Scope of Employment—Testimony & Instructions
(i)
The threshold issue at trial, and the core issue on this appeal, is whether Harper was acting within the scope of her employment at the time of the accident. Called as appellant’s witness at trial, Harper testified she had been employed by RPD for approximately three years at the time of the accident. Harper stated RPD required she use her own vehicle for delivery purposes. RPD paid her a mileage allowance for use of her vehicle. Also, Harper stated RPD operated out of a hangar at Murray Field Airport. Harper checked in at the hangar in the morning before setting off on a regular schedule of delivery and pickup at particular locations. Harper accessed the security gate to the airport with a combination provided to her as an employee of RPD.
On the day of the accident, Harper left the RPD hangar after her work day was done. She and her husband got in her car and drove directly to where the accident occurred, which is the same route she would take if she were going to her home. However, Harper stated that she was not going home when the accident occurred. On cross-examination, Harper explained she arrived at the RPD hangar just before 5:00 p.m. in order to drop off all the packages she had collected. Her husband was with her. Her husband did not normally ride with her when she made deliveries and returned packages to the RPD hangar. He was with her on that occasion because she met him at one of her delivery points so that they could go out to dinner after work to celebrate their upcoming anniversary. They planned to go directly from the RPD hangar to dinner at Mazzotti’s restaurant. When Harper left the RPD hangar she had no additional packages to deliver that evening. Harper testified she left the RPD hangar, went through the security gate, and began to drive to the restaurant, and at that point she was no longer being paid for her time or receiving mileage allowance.
Harper’s husband Shawn also testified. Shawn stated he was a passenger in Harper’s car at the time of the accident. He stated he rarely rode with her when she was at work delivering and picking up packages. Shawn explained that day Harper thought he was going to work, but instead he went to the flower store and then to meet her on one of her stops at Mission Linen. He planned to surprise her because their anniversary was coming up. He stated that when they left the airport that evening they were headed to dinner at Mazzotti’s restaurant. Shawn stated he left his car at Mission Linen and they planned to stop by and pick it up after dinner.
(ii)
On Friday March 24, 2006, the trial court met with counsel to settle jury instructions after the close of evidence. Appellant’s trial counsel requested the court give Judicial Council of California Civil Jury Instructions (Spring 2007 ed.) CACI No. 3725, which states: “If an employer requires an employee to drive to and from the workplace so that the vehicle is available for the employer’s business, then the drive to and from work is within the scope of employment.” He also asked the trial court not to give CACI No. 3724 because it was not “factually” applicable: CACI No. 3724 states: “In general, an employee is not acting within the scope of employment while traveling to and from the workplace. But if the employee, while commuting, is on an errand for the employer, then the employee’s conduct is within the scope of his or her employment from the time the employee starts on the errand until he or she returns from the errand or until he or she completely abandons the errand for personal reasons.” RPD’s trial counsel, on the other hand, requested CACI No. 3725 be given in modified form as follows: “If an employer requires an employee to drive from home to the workplace and from the workplace to home so that the vehicle is available for the employer’s business, then the drive . . . from home to work and from work to home is within the scope of employment.” With that modification to CACI No. 3725, RPD’s counsel stated CACI No. 3724 was not necessary. However without such modification, RPD’s counsel stated “there has to be some instruction, whether it be a special instruction or some version of 3724, to indicate that if the employee’s intent is not to go home, but is abandoned, that exception to the going-and-coming rule is doing something different. . . .” Thereafter, the trial court took lengthy and extensive oral argument on the scope of employment issue.
On Monday morning, the trial court announced it had formulated a “one page special instruction about scope of employment,” and stated over objections by both counsel that, “I am going to give that as the way I have it worded there. It appears to be a correct statement of the law.” The court’s instruction is as follows, and the paragraphs are numbered for ease of discussion below:
“1. Wendell Row must prove that Ann Harper was acting within the scope of her employment when Wendell Row was harmed. Conduct is within the scope of employment if; A, it is reasonably related to the kinds of tasks that the employee was employed to perform; or, B, it is reasonably foreseeable, in the light of the employer’s business or the employee’s job responsibilities.
“2. If an employee combines his or her personal business with the employer’s business, then the employee’s conduct is within the scope of employment. [¶] However, if it clearly appears that at the time of the conduct that the employee was not performing work for his or her employer, either directly or indirectly, but was acting only for his or her own personal reasons, then the conduct was not within the scope of employment.
“3. In general, an employee is not acting within the scope of employment while traveling to and from the workplace. But if an employer requires an employee to drive to and from the workplace so that the vehicle is available for the employer’s business, then the drive from home to work, and work to home is within the scope of employment.
“4. Where the employer requires an employee’s vehicle to be available for the employer’s business, minor deviations for personal pursuits from the drive from home to work, and work to home, are still within the scope of employment, and the employee is still acting within the scope of employment when the employee combines the drive from home to work, or work to home with a personal objective. However, the employee is not within the scope of her employment if at the time of the accident, she had completely abandoned the drive from home to work, or work to home for personal reasons. To constitute such an abandonment, the deviation or departure must be substantial and complete.
“5. In determining whether an employee had completely abandoned the drive from home to work, or work to home for pursuit of a personal objective, you may consider, among other things; one, the intent of the employee; two, the nature, time, and place of the personal objective; three, the incidental acts the employer should reasonably have expected the employee to do; and four, the amount of time consumed or to be consumed in the personal activity.
“6. However, even if the employee is not hired to drive to and from work so that the vehicle is available for the employer’s business, the employee is still in the scope of employment if; one, the accident occurred on premises within the ownership of or control of the employer; or two, the accident occurred on the necessary means of access thereto, even if not owned by the employer or within its control, if the employment: A, creates a special risk; [¶] B, the accident occurred within the field of that risk; [¶] and C, the accident was related to that special risk.”
DISCUSSION
A. Instructional Error
Appellant contends the trial court’s instruction on the scope of employment is erroneous. Specifically, appellant asserts the trial court’s instruction is “lengthy and confusing” and the trial court should have given the much shorter and simpler CACI No. 3725. Appellant further asserts the “vice” of the trial court’s instruction is “that it focuses the factfinder’s attention on ‘home’ as opposed to ‘work’ [and] [¶] . . . [¶] [a] properly instructed jury would have found that Harper was in the course and scope of her employment at the time of the accident.”
“We independently review a claim of instructional error, as the underlying question is one of law, involving the determination of applicable legal principles. ‘In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.’ ” (Thompson v. County of Los Angeles (2006) 142 Cal.App.4th 154, 163 [citations omitted].)
However, “[a] party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence. The trial court may not force the litigant to rely on abstract generalities, but must instruct in specific terms that relate the party’s theory to the particular case. [Citations.]” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572.) Nonetheless, “reversal of a judgment may not be based upon the failure to give particular instructions if the point is covered adequately by instructions which were given.” (Mathis v. Morrissey (1992) 11 Cal.App.4th 332, 343.) Further, instructional error will not result in a reversal of a judgment unless the reviewing court finds that a miscarriage of justice has resulted from the error, such that there is a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have resulted. (Soule, supra, 8 Cal.4th at p. 580.)
Applying these standards, we find no infirmity in the instruction drafted by the trial court on scope of employment. Indeed, appellant identifies no specific error of law in the instruction. It is apparent the trial court combined various CACI instructions on vicarious liability in order to fashion an instruction which reflected the factual nuances presented and allowed both parties to argue their respective theories of the case. Paragraph 1 of the instruction incorporates CACI No. 3720 (Scope of Employment). Paragraph 2 incorporates CACI No. 3723 (Substantial Deviation). Paragraph 3 opens with the general going-and-coming rule as set forth in the CACI No. 3724 (Going-and-Coming Rule) and continues with a statement of the vehicle-use exception to the going-and-coming rule as set forth in CACI No. 3725 (Vehicle-Use Exception).
Paragraph 4 of the court’s instruction is based on settled scope-of-employment law. On the one hand, a minor and foreseeable deviation from the employer’s business does not remove an employee from the scope of employment. (See, e.g., Lazar v. Thermal Equipment Corp. (1983) 148 Cal.App.3d 458, 465-467 [employee whose commute to and from work was within the scope of employment made a minor and foreseeable deviation from the employer’s business when went to a grocery store to purchase a few items on the way home].) On the other hand, if an employee completely abandons the employer’s business on his or her own personal pursuits, then the employee is no longer within the scope of employment. (See, e.g., Le Elder v. Rice (1994) 21 Cal.App.4th 1604, 1608 (Le Elder) [employee who was on call 24 hours a day, seven days a week, deviated substantially from his employment duties when undertook the “purely personal activity” of driving his children to school]; Felix v. Asai (1987) 192 Cal.App.3d 926, 933 (Felix) [employee was directed by employer on special errand to the post office on the way home from work but completely abandoned his employer’s business after he decided to go straight from the post office to his parents’ house for dinner].) Paragraph 5 of the court’s instruction sets forth the factors the jury may consider in determining whether an employee has abandoned the employer’s business. (Felix, supra, 192 Cal.App.3d at pp. 932-933 [citing cases].)
Paragraph 6 appears to be the trial court’s restatement of CACI No. 3708 (Peculiar–Risk Doctrine), modified to fit the facts of this case. In any case, only RPD’s trial counsel objected to Paragraph 6 of the court’s instruction, stating: “I do not believe it’s appropriate to give [Paragraph 6] in the special instruction . . . in that I simply do not believe there are any facts to indicate . . . either the accident occurred on premises within the ownership or control of the employer . . . or . . . not under the ownership or control of the employer[] but creat[ing] a special risk to the employee.” Appellant’s counsel argued Paragraph 6 should be included.
In sum, the trial court’s instruction may be somewhat lengthy, but it accurately states the law in a comprehensible manner, reflects the facts of the case, and gave each side leeway to argue their respective theories to the jury. The trial court did not err in this regard.
B. Insufficiency of the Evidence
Appellant asserts there was insufficient evidence to support the jury’s determination Harper was not within the scope of her employment at the time of the accident. Appellant asserts a brief, tautological argument that because Harper was leaving work she was necessarily within the scope of employment.
A challenge to the sufficiency of the evidence that supports a verdict is reviewed under the substantial evidence standard. (Orange County Employees Assn. v. County of Orange (1988) 205 Cal.App.3d 1289, 1293.) Under the substantial evidence standard, we “view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor.” (Ninety Nine Investments, Ltd. v. Overseas Courier Service (Singapore) Private, Ltd. (2003) 113 Cal.App.4th 1118, 1127.)
Here, both Harper and her husband testified that when they left RPD’s premises they were on their way to an anniversary dinner at Mazzotti’s restaurant. Indeed, Shawn Harper testified the only reason he was with his wife at the time of the accident was because they were going out to dinner after Harper finished work. This is substantial evidence from which the jury could have concluded that Harper had abandoned her usual drive home to pursue purely personal ends, and was therefore not acting within the scope of employment at the time of the accident. (Le Elder, supra, 21 Cal.App.4th at p. 1607 [to decide whether vicarious liability attaches to an employer under the doctrine of respondeat superior, “it is necessary to determine the main purpose of the injury-producing activity: If it was the pursuit of the employee’s personal ends, the employer is not liable.”].)
C. Denial of Motion for a New Trial
The standard of review from denial of a motion for a new trial is abuse of discretion. (Garcia v. Rehrig Internat., Inc. (2002) 99 Cal.App.4th 869, 874.) Code of Civil Procedure section 657 sets forth the grounds for granting a motion for a new trial. From appellant’s brief remarks on this contention, we can only assume he relies on the sixth ground, namely, “the verdict . . . is against the law.” (Code of Civil Proc., § 657, subd. (6).) However, as noted above, we find no legal infirmity in either the trial court’s instruction or the sufficiency of the evidence supporting the jury’s verdict.
Appellant does not state which of the statutory grounds for a new trial set forth in section 657 he relies upon.
D. JNOV
“A party is entitled to judgment notwithstanding the verdict only if there is no substantial evidence to support the verdict and the evidence compels a judgment for the moving party as a matter of law. [Citation.] The trial court must view the evidence in the light most favorable to the verdict, disregard conflicting evidence, and indulge in every legitimate inference to support the verdict. [Citation.]” Paykar Construction, Inc. v. Spilat Construction Corp. (2001) 92 Cal.App.4th 488, 493-494.) “On appeal, we determine de novo whether there is substantial evidence to support the verdict and whether the moving party is entitled to judgment in its favor as a matter of law.” (Id. at p. 494.)
Appellant contends he was entitled to JNOV because at the time of the accident Harper was leaving work. Appellant reasons that because RPD required Harper to use her vehicle for work, she was within the scope of employment when she left work. He asserts that it is irrelevant to the scope of employment analysis whether or not Harper intended to stop at a restaurant. In essence, appellant contends the vehicle-use exception to the going-and-coming rule is controlling here. As explained below, we cannot agree.
“ ‘Under the doctrine of respondeat superior, an employer is vicariously liable for his employee’s torts committed within the scope of the employment.” (Tryer v. Ojai Valley School (1992) 9 Cal.App.4th 1476, 1480.) To impose such liability, the employee’s act must be “an ‘outgrowth’ of his employment, ‘inherent in the working environment,’ ‘typical of or broadly incidental to’ the employer’s business, or, in a general way, foreseeable from his duties. [Citations.]” (Yamaguchi v. Harnsmut (2003) 106 Cal.App.4th 472, 482.)
However, “an employer is [generally] not responsible for torts committed by an employee who is going to or coming from work.” (Tryer v. Ojai Valley School, supra, 9 Cal.App.4th at p. 1481.) But there are exceptions to this “going and coming” rule. As pertinent here, it may not apply where employees like Harper must have their cars available to drive on company business. (O’Connor v. McDonald’s Restaurants (1990) 220 Cal.App.3d 25, 29; Largey v. Intrastate Radiotelephone, Inc. (1982) 136 Cal.App.3d 660, 668.); Huntsinger v. Glass Containers Corp. (1972) 22 Cal.App.3d 803, 810.)
But the vehicle-use exception is not itself absolute. Even if the vehicle-use exception to the going-and-coming rule is applicable, “the employee may yet be found outside the scope of his employment if at the time of the accident he has completely abandoned his employer’s business for personal reasons.” (Felix v. Asai, supra, 192 Cal.App.3d at p. 932.) “To constitute an abandonment, however, the deviation or departure from the employer’s business to pursue a personal errand must be substantial and complete. [Citation.] A mere deviation for personal reasons will be insufficient. Where the employee may be deemed to be pursuing a business errand and a personal objective simultaneously, he will still be acting within the scope of his employment.” (Ibid.)
The issue of abandonment is the crux of the matter. Just because Harper was leaving work does not mean she was necessarily within the scope of employment, as asserted by appellant. Appellant relies on Singh v. Board of Retirement (1996) 41 Cal.App.4th 1180 (Singh). But Singh was a pure vehicle-use exception case involving no issue of abandonment or deviation from the employer’s business. (Singh, supra, 41 Cal.App.4th at p. 1188 [“Singh’s injury arose out of the course of his employment, notwithstanding the fact he was on his way to work at the time of the accident, because Singh came fully within the [vehicle-use] exception to the going-and-coming rule].)
Appellant is nearer the mark with Lazar v. Thermal Equipment Corp., supra, 148 Cal.App.3d 458 (Lazar). In Lazar, Richard Lanno was allowed to take the company truck home on a daily basis to facilitate his duties as on-call project engineer for Thermal Equipment Corporation (“Thermal Equipment”). (Id. at p. 461.) Lanno left work one day driving the company truck in a direction away from both the company plant and his home because he intended to stop at a store to make a few purchases before going home. (Ibid.) Before he got to the store, Lanno struck plaintiff’s car and injured him. (Ibid.) At trial, the only evidence presented on scope of employment was Lanno’s testimony. (Ibid) The jury awarded plaintiff damages but returned a special verdict that Lanno was not acting within the scope of employment at the time of the accident. (Ibid.) Subsequently, the trial court granted plaintiff’s motion for JNOV on the grounds the jury should have been instructed as a matter of law that Lanno was acting within the scope of employment. Thermal Equipment appealed the JNOV. (Id. at p. 462.) The Court of Appeal, Second District, Division Seven, held JNOV was properly granted because Lanno’s trip to the store “was a foreseeable and minor deviation.” (Id. at p. 465.) The deviation from his employer’s business was minor because “[n]o evidence was presented, nor could any inference be drawn from the evidence, showing Lanno had any other object in mind that day than a brief stop at a store before going home.” (Id. at pp. 465-466) The deviation was foreseeable because “we can think of no conduct more predictable than an employee’s stopping at a store to purchase a few items on the way home.” (Id. at p. 466.)
The same cannot be said here, however. Harper and her husband presented testimony from which it can reasonably be inferred they intended to spend much of the evening at dinner at Mazzotti’s restaurant. Harper was with her husband Shawn at the time of the accident because they left RPD together in Harper’s vehicle. Shawn left his vehicle at Mission Linen, where he had earlier met Harper, and said they planned to pick it up later that evening. Shawn said he went to meet Harper at Mission Linen with flowers in order to surprise her and then go out for dinner after Harper finished work. The idea was to celebrate their upcoming anniversary. Therefore, unlike the situation in Lazar, supra, 148 Cal.App.3d 458, these facts provide substantial evidence to support the jury’s verdict Harper abandoned her normal commute home in pursuit of her own personal ends, and appellant was thus not entitled to judgment as a matter of law. (Sunderland v. Lockheed Martin Aeronautical Systems Support Co. (2005) 130 Cal.App.4th 1, 11-12 [employee not acting within the scope of employment when he drove to a fast-food restaurant after work because at time of the accident his purpose “was personal in nature and was not related to his employment or to his employer”]; Le Elder, supra, 21 Cal.App.4th at p. 1608 [employee who was on call 24 hours a day, seven days a week, deviated substantially from his employment duties when undertook the “purely personal activity” of driving his children to school]; Felix, supra, 192 Cal.App.3d at p. 933 [employee was directed by employer on special errand to the post office on the way home from work but completely abandoned his employer’s business after he decided to go straight from the post office to his parents’ house for dinner].) Accordingly, the trial court did not err in denying appellant’s motion for JNOV.
In the final section of his brief, appellant presents a lengthy argument why liability should be imposed on RPD under respondeat superior on public policy grounds. However, the public policy reasons for applying vicarious liability on an employer under the theory of respondeat superior (see, e.g., Le Elder, supra, 21 Cal.App.4th at p. 1609 [“(1) to prevent recurrence of the tortious conduct; (2) to give greater assurance of compensation for the victim; and (3) to ensure that the victim’s losses will be equitably borne by those who benefit from the enterprise that gave rise to the injury”] are not served if the employee is acting outside the scope of employment at the time of his or her tortious conduct. (Id. at pp. 1609-1610.)
DISPOSITION
The judgment is affirmed. Appellant shall bear costs on appeal.
We concur: McGuiness, P. J. Pollak, J.